Confidential Informers Play Complex Role For FBI

This past weekend, New York City officials charged a man they called a lone wolf a would-be terrorist arrested in the act of manufacturing three pipe bombs. But today we read reports that the FBI declined to pursue a case against Jose Pimentel because it had questions about the role of a confidential informer. More from NPR's counterterrorism correspondent Dina Temple-Raston in just a moment. But we also want to hear from those of you who work in law enforcement.

If you've worked with a confidential informant, where's the line between informing and entrapment? Give us a call, 800-989-8255. Email, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. Dina Temple-Raston joins us from our bureau in New York. Nice to have you back.

DINA TEMPLE-RASTON, BYLINE: Thank you very much.

CONAN: And what do we know about the FBI's doubts about the informant in this case?

TEMPLE-RASTON: Now, officially I should say that the FBI isn't commenting on this case. So what we know is unofficially and on background from sources within the FBI that I've talked to. And we're hearing that the FBI passed on this case twice because not just because an informant - they were worried about the informant - but also because they thought that Jose Pimentel, the suspect in this case, wasn't dangerous. Their sense of it was that he had large enough mental issues and his mental issues were severe enough that he was incapable of doing anything on his own.

And they were also worried that the informant who was working with the NYPD had kind of overstepped and that what would happen is Pimentel would be able to make an entrapment case that this wasn't something he was going to do on his own, but he was sort of enticed to do so.

CONAN: One quote said that the - Pimentel didn't have the money even to buy the basic equipment at a Home Depot that he needed to make the bombs.

TEMPLE-RASTON: And apparently he had very bad drill skills, that he had trouble drilling the holes in this pipe that he needed to drill so that he could put the bomb together.

CONAN: Well, we'll find out more about the entrapment defense if that comes to court, but this is not the first time there's been tension between the New York City Police and the FBI.

TEMPLE-RASTON: No. There hasn't. In fact, what's interesting is, you know, they've only brought state charges against him. They haven't brought federal charges, even though he allegedly wanted to target U.S. post offices and U.S. servicemen, which is clearly the purview of the FBI and federal authorities. And I think what's really going to be interesting about this is to see whether or not the FBI can roll back all these allegations that they've made about what a weak case this is because we're basically - what we're hearing is a case for the defense.

CONAN: Indeed, you'd think Mr. Pimentel's lawyer, the first thing he'd do is subpoena the FBI agent and say tell me what you know.

TEMPLE-RASTON: And why did you feel uncomfortable about this case, and why did you think that it was too weak for you to get involved? I mean, a lot of what's being said - as a general matter there are these terrorism cases. Entrapment is the first thing that is sort of the defense of - for most people who are wrapped up in these cases. And for the FBI to not take a case is a really big deal. It happened earlier this year, again with the New York Police Department, and it was two men from Queens who allegedly wanted to blow up synagogues.

And when it went before a grand jury, a lot of the charges were dismissed because the case was too weak. So there's a little bit of precedence here, and I think that it's going to be interesting to see whether or not this is as airtight a case as what's presented on Sunday night during this press conference.

CONAN: Is the entrapment defense often successful?

TEMPLE-RASTON: Well, that's the irony of all of this, is everyone talks about entrapment and what a terrible thing it is, but at the same time the number of terrorism cases since 2001 that have won on an entrapment defense? Exactly zero.

CONAN: Zero?

TEMPLE-RASTON: Zero.

CONAN: And these include cases where, for example, I remember one where the informant handed the suspect a phone and said, here, set off the bomb.

TEMPLE-RASTON: Well, here's what interesting about that. In that case, there was one case that was down in Dallas, and it was someone that they had found in a chat room who said he wanted to attack the U.S. His name was Smadi. And basically what happened is the FBI posed as someone who was like-minded, helped him get these so-called explosives, and then handed him the phone so that he would actually dial phone and ignite the explosives in this Dallas skyscraper. And, in fact, when he dialed the number, the FBI office in Dallas picked up the line. It was their number.

And the way you pose the question, it sounded like this was problem, if you hand them the phone. But, in fact, what they found is if you have juries who think that you provided the explosives, you provided all this, you pushed it along. The guy actually dialed the phone, which meant he was - at least in the moment - thinking that he wanted to blow something up, and that's why he was dialing the phone. So that aspect of these cases is considered to be positive for the prosecution, as opposed to some sort of proof of entrapment.

CONAN: And confidential informants seem to be crucial to these kinds of cases.

TEMPLE-RASTON: Indeed. They seem to have been. You know, the sort of really big case that we've had since 9/11 was the Najibullah Zazi case, which was that Denver area shuttle bus driver who actually went to train to learn how to make bombs, brought chemicals to New York and had intended to blow up backpack bombs on the subway. And in that case, there was no confidential informant. In fact, this - when you talk about the tension between the New York Police Department and the FBI, that case was almost blown when the New York Police Department went to the neighborhood with a picture of Najibullah Zazi and asked if anybody had seen him around. And somebody had actually tipped him off that law enforcement was looking for him.

CONAN: And New York City, after 9/11, obviously had good reason to do counterterrorism on their own. But aren't there turf fights all the time?

TEMPLE-RASTON: Well, not all the time. I mean, the idea behind this is that there's supposed to be a healthy competition between the New York Police Department and the FBI. And much of the time, there is. And much of the time, they do work well together. But there are certain cases - and this would be an example of one - in which I think the New York Police Department decides to be a little more aggressive than the FBI decides to be. And, you know, to their credit and to their defense, the - they are trying to protect the city. The FBI is trying to protect the country. And so they, a little bit, have different, you know, mandates. And I think that the bar is much lower for the New York Police Department in terms of pressing charges or bringing a case than it may well be for the FBI.

CONAN: And we read in this particular case - and again, just allegations thus far. There's a grand jury indictment. But that the state law provides opportunities for charges that are not available in federal law.

TEMPLE-RASTON: Well, in federal law - and again, we'll see whether or not he ends up getting charged with conspiracy. But in federal law, you need more than just a confidential informant and the suspect or defendant to get a conspiracy charge. In state law, the informant and the suspect is enough. And this was one of the reasons that they said they decided to only press charges on the state level, versus the federal level. And I think most people who are looking at the case or know how these cases are put together say that's kind of a flimsy excuse to keep it at the state level. And the implication is that the case is not that strong, and that's the reason why they're trying to make it stick on a lower level.

CONAN: We're talking with Dina Temple-Raston, NPR counterterrorism correspondent about the role of informants in terrorism cases. 800-989-8255. Dennis is on the line, calling from Jamestown in California.

DENNIS: Hey. How are you doing?

CONAN: Good. Thanks.

DENNIS: Good. My comment is this, is that once the police became aware of this character, why couldn't they have just identified themselves to him and said: Hey, we're on to you. Now cut it out, or you're going to get busted. That would have ended it. There wouldn't be a fortune spent in wasted money chasing after this guy, having to set him up to create a crime, that if they just said, hey, we're on to you. Wouldn't had stopped everything right there?

TEMPLE-RASTON: Well, I think the - yes, in one way, I guess, it would have. And it also depends on his - whether or not he really does have the mental capacity to go ahead with this crime. But also, the reason why they were watching him as long they were was because they wanted to make sure he was, in fact, one of these so-called lone wolves, he - that he wasn't someone who was working with al-Qaida overseas. So one of the reasons they watch these people so long is to make sure that they have isolated everybody involved with the plot.

CONAN: He was said to be a followed of Anwar al-Awlaki, the American-born cleric killed by a drone strike in Yemen. And that seemed to have precipitated this latest decision - if it was a decision - to go ahead and make pipe bombs.

TEMPLE-RASTON: Well, I think the way that they put it, actually, was that he - that he accelerated his effort to make these pipe bombs and perhaps do something - some sort of terrorist attack after the al-Awlaki killing.

Also, interestingly, the person who was killed with al-Awlaki in that car was a young man named Samir Khan. Samir Khan, we've talked about him before in this show. He basically ran this magazine for al-Qaida in the Arabian Peninsula called Inspire. He was an American who left the U.S. He left North Carolina and traveled to Yemen and sort of joined forces with them. And it was his magazine. There's a recipe in this inaugural issue of Inspire that was how to "Make a Bomb in the Kitchen of Your Mom." And it was that recipe that Pimentel allegedly used to try to put together these pipe bombs.

CONAN: Dennis, thanks very much for the call.

DENNIS: Thank you.

CONAN: And as we look ahead, where did this case go next?

TEMPLE-RASTON: Well, I - what I find very interesting about it is the back-and-forth that's going on between the FBI and the New York Police Department. Because with every comment that's made, with every sort of hint of what might be weak - what might be a weakness in the case, you have a defense attorney who's writing this all down to figure out what to do with it. And I think that's why the FBI's trying to be careful about not coming out officially. So the next thing we're going to see is whether or not he - a grand jury brings an indictment. And then, presumably, it will go to trial.

CONAN: Let's go next to Bernie, Bernie calling us from Texas.

BERNIE: Yes, sir. Thank you for taking the call.

CONAN: Sure.

BERNIE: Just a quick comment, and I'd like to hear your other participant's comment on this. The whole issue of predisposition is very, very carefully vetted by anyone in law enforcement dealing with informants. You have to have them to make any kind of case of this nature, and particularly through - the issue of entrapment on either corruption or a terrorism case. They're very careful to make sure that the subject of the investigation is already predisposed to be committing that kind of offense, at least in (unintelligible) investigations.

CONAN: And how do you go about that, Bernie?

BERNIE: Well, you - obviously, you have an informant ask the kind of questions. You introduce another undercover agent, if possible, as opposed to an informant. And you just continue to make sure that your informant is very, very careful about what he says and how he says it, and mainly listens, as opposed to talks.

CONAN: Listens as opposed to talks. That's interesting. And Dina Temple-Raston, some suspects will talk more openly than others, though.

TEMPLE-RASTON: Well, I think what's interesting about this - and I'm glad that the caller mentioned this. Whenever I've talked to law enforcement about informants, they say what worries them about informants is when the tape is running and they hear their informants talking a lot. They said the best informants are the ones that are quiet, because otherwise, it ends up sort of being like leading the witness, right, that they're making all these different suggestions. And by making all these suggestions, it looks like they're leading somebody on and maybe drawing them into a plot, as opposed to them being predisposed to doing something. And we haven't heard yet how much this informant really talked or didn't talk on the tape.

But I will say that what's interesting about this case - and this is the first time I've heard this in a terrorism case - is that this informant actually got high with Pimentel, the suspect, and that many of the things that Pimentel said that they find - that they're going to be using in the case, he said when he was high. So you have to wonder, A, how well the informant will do on the stand if he's getting stoned with the guy he's supposed to be sort of working, as they say. And secondly, how much will a jury will believe that what you say when you're high is what you're really going to do?

CONAN: And did the confidential informant provide the drugs?

TEMPLE-RASTON: Well, that's a good question, too. I think that that hasn't even been brought up yet in the context of this larger thing. But I've just never heard of a confidential informant in a terrorism case getting high with the person he's supposed to be working.

CONAN: Bernie, thanks very much for the call. Appreciate it. And our thanks as well to Dina Temple-Raston, NPR counterterrorism correspondent, who joined us from our bureau in New York. Dina, thanks very much.

TEMPLE-RASTON: It's always a pleasure.

CONAN: This is TALK OF THE NATION, from NPR News. Transcript provided by NPR, Copyright NPR.